Citation Nr: 1519278
Decision Date: 05/05/15 Archive Date: 05/19/15
DOCKET NO. 13-28 382 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia
THE ISSUE
Entitlement to VA home loan benefits.
REPRESENTATION
Veteran represented by: Missouri Veterans Commission
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. Nichols, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1977 to July 1977. He received an honorable discharge based on a Medical Board finding that he had a continuing medical condition that existed prior to entry. Thus, he was found to have been enlisted in error.
This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision of the VA Regional Loan Center in Atlanta, Georgia, which determined that the Veteran was not eligible for the VA home loan benefit based on the fact that he did not meet the required minimum length of service to be eligible. The statement of the case also indicated that there was no evidence that the Veteran's discharge from the military was due to a service-connected disability. Thus, basic eligibility requirements for the home loan benefit were not met.
The Veteran testified before the undersigned at a Board hearing held via videoconference technology in March 2015; the transcript of the hearing is of record.
FINDINGS OF FACT
1. The Veteran served after May 7, 1975 and had less than 181 days of service on active duty.
2. The Veteran was discharged from service due to a service-connected disability.
CONCLUSION OF LAW
The criteria for basic eligibility for VA home loan benefits have been met. 38 U.S.C.A. §§ 3701, 3702 (West 2014); 38 C.F.R. § 3.315 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This decision constitutes a complete grant of the benefit sought on appeal. As such, no discussion of VA's duties to notify or assist is necessary.
A certificate of eligibility for loan guaranty benefits is granted only to veterans who satisfy the basic entitlement criteria outlined in 38 U.S.C.A. §§ 3701 and 3702 (West 2014).
In pertinent part, a veteran is basically eligible for housing loan benefits under section 3702 if he or she served after July 25, 1947, for a period of more than 180 days and was discharged or released therefrom under conditions other than dishonorable; or served on active duty for 90 days or more at any time during the Persian Gulf War, other than a veteran who is ineligible for such benefits under 38 U.S.C.A. § 5303A(b). 38 U.S.C.A. § 3702(a)(1), (2).
Notwithstanding the foregoing, eligibility for certain VA benefits, including VA home loan guaranty benefits, are subject to additional minimum active duty service requirements, generally either 24 months of continuous active duty or the full period for which the person was called or ordered to active duty. 38 U.S.C.A. § 5303A(b)(1). There are, however, exceptions to the minimum duty requirements set forth at 38 U.S.C.A. § 5303A(b)(1), including if the person has a disability that the Secretary has determined to be compensable under chapter 11 of title 38, United States Code. 38 U.S.C.A. § 5303A(b)(3)(C).
If a veteran of World War II, the Korean conflict, or the Vietnam era had less than 90 days of service, or if a veteran who served after July 25, 1947, and prior to June 27, 1950, or after January 31, 1955, and prior to August 5, 1964, or after May 7, 1975, has less than 181 days of service on active duty as defined in §§ 36.4301 and 36.4501, eligibility of the veteran for a loan under 38 U.S.C. Chapter 37 requires a determination that the veteran was discharged or released because of a service-connected disability or that the official service department records show that he or she had at the time of separation from service a service-connected disability which in medical judgment would have warranted a discharge for disability. 38 U.S.C.A. § 3702; 38 C.F.R. § 3.315(b).
The Veteran served in peacetime. His DD Form 214 reflects that he received an honorable discharge following one month and 23 days of active duty service from May 16, 1977 to July 8, 1977. Thus, he had less than the minimum of active duty service required for the benefit sought. See 38 C.F.R. § 3.315(b). However, in this case, the Veteran is in receipt of compensation for service connection for tinnitus (10 percent disabling). See March 2013 Rating Decision. In light of the award of a compensable service-connected disability rating, the additional minimum active duty service requirements set forth in section 5303A(b)(1) are not for application. 38 U.S.C.A. § 5303A(b)(3)(C).
Accordingly, to establish eligibility for VA loan guaranty benefits, he must establish that he was discharged or released from service due to a service-connected disability or that service department records show that at the time of separation from service he had a service-connected disability which in medical judgment would have warranted a discharge for disability.
The Veteran specifically avers that he was medically separated from the Navy as a result of a service-connected disability. The July 1977 Medical Board findings indicate that the Veteran was medically separated because of diagnosed bilateral chronic ear infections which existed prior to entry. The outcome of this case essentially turns on whether the Veteran's service-connected tinnitus can be linked to the reason for his discharge from service. For the following reasons, the Board finds that the Veteran was discharged by reason of a service-connected disability.
The Board notes at the outset that the Veteran's claim of service connection for chronic ear infection was denied by way of a May 1990 rating decision. The reason for the denial was that the bilateral chronic ear infection was found to have existed prior to service and was not aggravated beyond the usual progression of the disease during his period of active duty. Regardless, this does not change the outcome. Service treatment records show that in June 1977, several weeks prior to his discharge, the Veteran had chronic ear infections and received treatment accordingly. The Veteran contends that while having his ears cleaned out in service, his ear drum was punctured, which lead to a surgical procedure for ear drum repair in service. See Notice of Disagreement. He testified that after having his ear drum repaired in service, he developed ringing in his ears. See also Bd. Hr. Tr. at 4-5. His argument is that his chronic ear infections, to include the treatment and repair in service, caused the present tinnitus (his service-connected disability). See id. at 7.
The Veteran's statements are supported by a VA examiner, who, in February 2013, opined that the Veteran's tinnitus is at least as likely as not related to the ear infection that he had in service as well as related to the irrigation and subsequent perforation of the ear drum. He based his opinion on the Veteran's history, to include the time sequence and events that occurred in service. This examiner noted that the Veteran had a prior history of ear infections before service entry but based on the irrigation of the left ear with the subsequent perforation of the left eardrum, the clinician "[could] see where this can lead to tinnitus . . . ."
On review, and in affording the Veteran the benefit of the doubt, the Board finds that the uncontroverted competent and credible evidence of record links the chronic ear infections (reason cited for medical discharge) to the Veteran's service-connected disability (tinnitus). In other words, the Board finds it compelling that the evidence shows that the tinnitus was a direct result of the treatment for the chronic ear infections in service - e.g., irrigation and ultimate perforation of the ear drum. Since the chronic ear infections were the underlying cause of the tinnitus and the reason cited for his medical separation, the Board finds, in resolving any doubt in the Veteran's favor, that the Veteran was ultimately discharged by reason of a service-connected disability. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
Under these circumstances, the legal criteria for basic eligibility for VA home loan benefits have been met. 38 U.S.C.A. §§ 3701, 3702, 5303A; 38 C.F.R. § 3.315(b).
ORDER
Basic entitlement to VA home loan benefits is granted.
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Nathan Kroes
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs